\ ts

KERALA REAL ESTATE REGULATORY AUTHORITYTHIRUVANIANTHAPURAM

Present:

Complaint No. 112021Dated 6th July 2021

Sri. P H Kurian, Chairman.Smt. Preetha P Menon, Member

Complainant

Siji Jacob & Aisle IsacPeediyakal House,Kaviyoor Village,Thiruvalla TalukPathanamthitta District

Respondents

Ultima Builders & Developers Private Ltd,Rep: by its Director, M.C.M NajeebNilampathinj amugal, MLA RoadRaj agiri Valley, KakkanadErnakulam

2. M"C.M NajeebDirector,Nilampathinj amugal, MLA RoadRaj agiri Valley, KakkanadErnakulam

The above Complaint has come up for final hearing

today. The Complainant along with his Counsel Adv. Ranji George Cherian and

Respondent's counsel Adv. A. Sunil Shanker attended the virtual hearing today.

I

2

ORDER

1. The Complainants and the Respondents entered into an

agreement for purchase/sale of the Apartment No:12G, on 04-01-2011 which is

having super built up area of 1187 sq. ft in l2th floor of Aero Sky Apaftments

along with parking area for a total consideration of Rs.35,00,000/- of which

2,25,0001- was given as the value of the undivided share in the property having

an extent of 43.76 cents comprised in Re-survey No: 514125 and 514113 of

Yazhakala Village. The Respondents had given the plan of the allotted parking

area along with the agreement and the total consideration was based on the said

agreement. The Complainants were prompt in payments and all the things which

are to be done from their part. The Respondents made believe the Complainants

that all amenities will be provided, including car park and believing the words of

the respondents, the complainants entered into the agreement, and also paid the

amount in time.In the meanwhile, the respondents informed that the apartment is

ready to occupy and the complainant agreed for the sale deed after paying the

balance sale consideration, believing that all the clauses of the agreement will be

fulfilled, as promised. After the sale deed, the I't Complainant had sent a mail to

the office of the Respondents on 0710612011 and specifically suggested regarding

the demarcation of the car parkingarca to be allotted to the Complainant. The

sale deed was registered on 101061201 I vide sale deed No. 1597 l20ll of the SRO

Thrikkakkara. After several repeated requests the respondents were not ready to

comply with provisions in the agreement. The sale deed dated 1010612011 was

prepared by the Respondent's lawyer, which is a clear cheating, as the clauses in

the agreement were not incorporated in the sale deed. The Complainants fully

believed the Respondents, as the Complainants thought that all the matters will

go as per the agreement. But the car parking was not allotted to the Complainant

and car has to be parked outside the premises. Thereby the Respondents

deliberately cheated the complaints. There were several e-mail communications

3

and telephone conversations between the Complainants and the Respondent

representatives.

2. On A71fi12018, the 1't Respondent's Marketing Manager

issued a letter to the Complainants stating that the Complainants can use the

adjacent land for temporary car parking, and further stated that once the

Respondents construct car parking building in that land, they will permanently

mark the parking for the complainants, and also stated not to fix any name boards

in the said property. A covered safe park has to be provided as per the agreement,

hence there is a clear violation against the agreement. It was learnt that the

apartment project has finished without ample car parking. The reliefs sought in

the complaint is to direct the Respondents to allot the car parking area as

rnentioned in the agreement, for which the total amount was received by the

Respondents and allow to realize the cost of the proceedings. The Complainants

produced the copies of agreements for sale, Sale deed and cash receipts, copy of

D.D, copy of Cheque issued to Ultima Builders & Developers Pvt.Ltd and email

receipt.

3. The Respondents have filed their Counter Statementdt26-03-2}21,

in which they submitted that the Complaint is not maintainable and is barred by

limitation. The agreement between the parties was executed on 04-01-2011. The

occupancy certificate had been obtained and building numbered on 08-09-2010.

Prior to the agreement, the Complainants had inspected the completed apartment

complex and satisfied themselves about the same. The sale deed was executed in

their favour on 10-06-2011. The possession was handed over on 17-A5-20I1 to

the Complainants. Therefore, since the project is completed and occupancy

certificate issued in 2010, there is no requirement to register with this Authority

presently. Hence, the Complaint is barred by limitation. It is also submitted that

4

after execution of agreement, there arose difficulties in accommodating all

Allottees car parking within the apartment complex. This fact was made known

to the Complainants by the I't Respondent. The 1't Respondent after discussions

with the Allottees had purchased adjacent land for a sale consideration of Rs. 48,

40,440 under sale deed No: 2004 of 2013, Thrikkakara S.R.O to provide

sufficient car parking to the allottees who could not be accommodated within the

apartment complex. The Respondents had decided to convey the said property

without arry additional consideration, in favour of Aparlment Owners

Association, to facilitate car parking by its members. It is submitted that the

allottees are using the said land for car parking. The Respondents had also

requested that the sale deed to be executed of the adjacent extent in favour of the

Association, should also be having the allottees who could not get parking in the

main Apartment complex as parties, since their rights have to be specifically

reserved. It is submitted that the Complainants are presently using the adjacent

plot provided by these Respondents for their car parking requirement. Therefore,

the Respondents have provided additional car parking by 2013 itself after

purchasing the adjacent plot. The draft ofthe proposed sale deed for the additional

land area was forwarded to the Complainants by the Owners Association vide

email dated rc-A4-2020. The Complainants vide email dated 14-04-2020 had

wanted confirmation that all the affected owners had been included. At the time

of execution of Sale deed, it was informed to the Complainants that the car

parking cannot be provided in the main apartment complex. It was for this reason

that the car parking was not referred in the Sale deed. The draft of the sale deed

was provided to the Complainants by email dated 16-05-2011 copy of which is

produced. The efforts of the Respondents have been to provide additional car

parking space and have not sought any consideration for transfer of additional

land, and is being used for the last several years by majority of allottees, including

the Complainants. It is also submitted by the Respondents that this Complaint is

only an experimental one, without any merit and is liable to be dismissed with

5

costs, The Respondents submitted the copies of receipt dated ll-05-2011 and

copies of email dated 14-04-2020 and 16-05-2011.

4. The Complainants have frled Replication to the Statement filed

by the Respondents, in which they stated that the statement filed by Respondents

are against true facts and it lacks bonafides. It is submitted that in the agreement

entered on 04-01-2011, the facility for covered car parking is specifically stated

and in the draft sale deed also the said facility was specifically mentioned and the

final sale deed was executed on 10-06-2011 wherein no such facility is

mentioned. When the Complainants have enquired about the same, the

Respondents assured to provide the same on the back of the main building or in

the adjoining land. The Complainants trusted the said words, firstly because the

builder assured that the car parking will be provided at the earliest and separate

documentation will be made for the same. Secondly the entire amount had been

paid to the builder and he would have found some reason not to return the money,

if the Complainants had withdrawn from the agreement at that stage. Thirdly it

was the lifetime savings of the Complainants that was invested into this property.

Hence the Respondents have failed to comply with the terms and conditions as

agreed between the parties in the agreement. It is also alleged that the sale deed

for the purchase of land for providing alternative car parking area by the

Respondents was executed in the year 2013, but the said matter was conveyed to

the Complainants only in the year 2018 by issuing a letter to the Complainants

copy of which is produced. Thus, the cause of action arose and from the year

20ll onwards, the Complaints were registering for the same and the Respondents

were kept on assuring that they will provide the same and thereby also the cause

of action is continuing and hence there is no time bar or not barred by limitation.

It is also submitted that the agreement is between Complainants and Respondents

and not between the Apartment owners Association and the Respondents. Thus,

the Owner's Association cannot step into the shoes of the Complainants and

cannot take decision on behalf of the Complainants. So, the Respondents cannot

6

drag the Owners Association into the case. The subsequent proposal of

Respondents was agreed by the Complainants only because of the reason that the

Respondents have agreed to provide a peffnanent car parking for the

Complainants. Once the structure is built in the adjacent land in a short duration

of time, they will provide a permanent car parking which is very clear from the

letter issued by the Respondents on 07-ll-2018. Till now the Complainants are

facing several difficulties in parking their vehicles and the vehicle is parked

without any covering and sometimes by the side of the road. Moreover, the

adjacent land is not sufficient for parking 26 vehicles, as the land has the

provision to house around 20 vehicles only. The draft of proposal of sale deed for

purchasing adjacent land was forwarded to the Complainants later on 10-04-2020

and that too by Owners Association, and not by Respondents.

5. When the Complainants came to know about non-availability of car

parking area in the main apartment complex on the day of execution of the sale

deed, the Respondents fully assured the Complainants that they will provide a car

parking on the back of the building in the main apartment complex itself. Later

they have backed out from their word without providing car parking clause in the

saie deed executed in favour of the Complainants. The Respondents are duty

bound for all the obligations and functions under the Real E,state (Regulations and

Development) Act 2016 made there under, to the Allottees as per the agreement

for sale as per Section 11(4) of the said Act and the Complainants are entitled to

get compensation from the Respondents as per Section I4(3) & 1B(3) of the said

Act as the Complainants were forced to park their vehicles in the open space

without any covering and caused much mental agony and suffering to the

Complainants. It is also pointed out that during the hearing, the Respondent

counsel put a proposal that a commercial complex is being built in the adjoining

land after it is acquired by the Association and that car parking will be provided

in the ground floor, it is a new contention and not contended in the statement filed

7

by Respondent. It is submitted that no such proposal has been finalized by the

Association to the Complainant in the communication dated 20-CI4-2021 and the

copy of the same is produced. Another contention raised during hearing is there

is delay in filing the case, if it was known that the car parking was not being

provided as per the agreement" It is to be noted that the Complainants persuaded

it constantly with the builders from 201I onwards and the builder keeps on

assuring verbally as w'ell as through letters and mails that covered car parking

would be provided, when a permanent structure would be constructed in the

adjoining land. But there was no written communication from the builder

regarding the said aspect. The Complainants submits that the written statement

filed by the Respondent are without any basis and is having no legal footing.

Thus, the Respondents are bound to provide a standard size covered car parking

to the Complainants with no additional expenditure and without any blockage of

entry of a fire engine, etc. in case of emergency. llhe Complainants aiso pray for

compensatory cost of Rs. 5 Lakhs f,rom the Respondents. The Complainants

produced more documents along with the Replication slrch as ccipies of mail

communications between thern and the Respondents and draft of sale deed sent

by the Respondent before registration and copies of Cheques given to the

Respondents.

6. We heard the leamed counsels on either side, gave careful consideration to

their submissions, perused the material documents available on record. After

detailed hearing and perusal of pleadings and documents submitted by both the

pafties, folloiving points came up for consideration:

1) Whether the above complaint is maintainable before this Authority?

2) Whether there occurred any failure on the parl of the Respondents in

complying with the terms of the agreelxent entered into between them and

the Complainant?

8

3) What order as to costs?

7. Point iYo. I' The learned Counsel appearing for the Respondents

argued that the Complaint is not maintainable and is baned by limitation. He

took contentions as iollor.vs: The agreement between the parties was executed

on 04-01-z}fi. The occupancy certificate had been obtained and building

numbered on 0B-09-20i0. Prior to the agreement, the Complainants had

inspected the completed aparlment complex and satisfied themselves about the

same. The sale deed was executed in their favour on 10-06-2011. The

possession was handed over on 17-05-2011 to the Complainants. Since the

project is completed and occupancy certificate issued in 2010, there is no

requirement to register the project with this Authority. Hence, the Complaint

is barred by limitation. But the only case of the Complainants is that the

Respondents had given the promise of a covered car parking space along with

the apartment purchased by them, as per the agreement for sale, and the total

consideration was based on the said agreement. The copy of price split up sent

by the Respondents to the Complainants, marked as Exbt.AT shows that the

Complainants had given Rs. 1,50,0001- for the car parking along with the total

amount of consideration. It is further alleged by the Compiainants that even

though the covered car parking was specifically mentioned in the agreement

fbr sale (Exbt. A1) as rvetrl as the draft of the sale deed (Exbt. .A3) sent by the

Respondents, it was intentionally omitted in the original sale deed. The sale

deed was executed on I0.06.2011. But on 07.06.2011the Complainant hlo. 1

sent an email to the office of the Respondents regarding demarcation of car

parking area allotted to the Complainants. Whenever the Complainants

demanded since zAfi, the said covered car parking facilit-v, as promised in the

agreement, the Respondents kept on assuring that it will be provided at the

earliest and separate documentation rvill be made for the same. The

t

9

Complainants have produced copies of several mail communications between

them and the Respondents from 03.01 .2011 to 20.04.2021, marked as Exbt.

.4.6 series which shows that the Complainants have been continuously

following up their demand all these years, right from the period of execution

of sale deed for which the Respondents were responding to the Complainants

and the mail No.4 dated 07.t1.2018 among the abovementioned mails is

clearly an admission from the part of the Respondents that they were not able

to provide the car parking to the Complainants whereby the Respondents

suggest them to use the adjacent land for temporary car parking and assure to

give the pennanent car parking space after constructing the car parking

building in the said land. The mails sent by the Complainants on 25.11.2419

& 20.02.2020 to the Respondents and many subsequent mails till 27 .10.2020

addressed to the Respondents reveals the serious concern of the Complainants

about obtaining the permanent covered car parking from the Respondents as

per the terms of the agreement and also for which an amount of Rs. 1,50,000/-

was remitted by them to the Respondents. A1l these communications

substantiate the contention of the Complainants that they persuaded the said

issue constantly with the Respondents from 20ll onwards and the

Respondents kept on assuring that the covered car parking would be provided.

8. Moreover, as expressed by this Authority through many of its previous

orders, obtaining Occupancy certificate or the registrability of a Project as per

Section 3 of Real Estate (Regulation & Development) Act, 2016 cannot be

linked with the question of maintainability of a complaint related to the said

project before this Authority. As per Section 2(2fl of the Act, "occupancy

certificate" means the occupancy certificate, or such other certificate by

whatever name called, issued by the competent authority permitting

occupation of any building, as provided under local laws, which has provision

for civic infrastructure such as water, sanitation and electricity. Section 31(1)

10

$brldesAd"Any aggrieved person may file a cornplaint with the Authority or the

adjudicating officer, as the case may be, for any violation or contravention ofthe

provisions of this Act or the rutres and regulations made thereunder against any

promoter allottee or real estate agent, as the case may be." In our State, as per

the Kerala Municipality Building RulesA(erala Panchayath Building Rules,

'Occupancy CertiJicate'is being issued by the Local Authority for a building

on receipt of the 'Completion Certificate' from the owner certiffingthat "tlte

number dated. " Then the "Occupancy

Certificate" which is also named as "Use Certificate" issued in Appendix F2

annexed to said Rules in the follow-ing format:

"Certified that the construction or reconstruction orqddtlj.on pL qlterution of buildine or erection of telecomrnunication tower orpole structure or work under the permitIt{o... ... ...dated ...issuedto and sz,rpervised

by... ...... ... ... ... ... ... ... . has been inopeqted byme and that the work executed i.s in accordance with the perynt q.ud lheb ))

In such context, how could these certificates be considered to satisfy with the

requirements/ terms and conditions of the agreement for sale executed by a

Promoter of a real estate project with the allottees therein? Hence by obtaining

such an occupancy certificate, we cannot conclude that the Project is completed

in all respects as promised by the Promoter to the Allottees. The unfortunate

fact is that our Building Rules are not in consonance with the provisions of

Real Estate (Regulation & Development) Act, 20t6 and it is to point out that

the said disharmony comes in the way of successful implementation of the Act

2016.

9. According to Section 11 (4)(a) of the Ac| "thepromoter shall

be responsible for all obligations, responsibilities and functions under the

provisions of this Act or the rules and regulations made thereunder or to the

1.1.

allottees as per the agreementfor s.ale, or to the association of allottees, as the

case may be, till the conveyance of all the apartments, plots or buildings, as

the case may be, to the allottees, or the common areas to the association oJ-

allottees or the competent authority, as the cose may be: Provided that the

responsibiltty of the promoter, with respect to the structural defect or any

other defect for such period as is referred to in sub-section (3) of section

14, shall continue even after the conveyance deed of all the apartments, plots

or buildings, as the case may be, to the allottees are executed. " But we

observed in many cases before us, the general practice of the promoters in our

State, executing the sale/conveyance deeds in favour of the allottees even for a

building ofwhich only a simple structure is completed and showing in the Deed

as 'under construction'. It reveals that the execution of conveyance deed of a

unit also cannot be associated with terms and conditions of the agreement for

sale executed between the promoter and the allottee with respect to a real estate

project. Then, how could the interest of allottees be protected, in the present

scenario, on the basis of the period of execution of conveyance/sale deeds? So

only by obtaining an occupancy certificate for or by executing a sale deed of an

apartment, we cannot conclude that the Project is completed and handed over

as promised by the Promoter. On the basis of the above facts and circumstances,

and as it is clear from the documents placed on record that the Complainants

have been consistently persuading the issue regarding the violation of terms of

the agreement executed rnith the Respondents as to non-providing of the

covered car parking, it is found that the above complaint is not barred by

limitation and the complaint is maintainable before this Authority. The Point

No. I is answered in favour of the Complainants.

10. Point No. 2: The Exbt. A1, agreement for sale explicitly

mentions the provision for a covered car parking to the Complainant and the

Schedule of Exbt -.A.3 draft sale deed which is sent to the Complainant by the

1.2

Respondents also show that the car parkingareais marked to the Complainants

along with the apartment. The Complainants have paid Rs. 1,50,000/- for the

said car parking which is evident from the Exbt. A7, split up of consideration

sent by the Respondents themselves. So undoubtedly, the Respondents have

the responsibility to provide one separate covered car parking to the

Complainants and it is not for the Respondents to shift this obligation to the

shoulders of the Association of allottees or some one else. Section 2(y) of the

Act, defines the car parking, using the term "garage" as"aplacewithin aproject

havingaroofandwalls tla"eesides for parking any vehicle, but does not include

an unenclosed or uncovered parking space such as open parking areas;". As

this Authority found lack of clarity in the said provision, a Public Notice was

issued on22.A2.2022 as clarification on allottable parking spaces as follows:

"As per Section 2(n)(iii) of the Act, open parking qrees shall be

considered as 'common areas' and hence the prornoter shall not allot suchereas to individual allottees. Enquiries are also being received on the

applicability of stilt parking, mechanised parking and basement parkingwhichare covered. The Kerala Real Estate (Regulation & Development) Rules 2018though uses terminologies like 'enclosed parking' and 'covered parking' does

not define these tenns. As per Rule 17(1)(e)(ii) of the Rules also asked to uploadthe details of garages/covered parking booked. Hence in the interest ofallottees, in addition to garage, other coveredparking spuces such as basementparking, stilt parking and mechanised parking arrangements will also be

ccsnsidered as parking space allottable to allottees by the Promoter. "

11. Hence it is clear that the Respondents/Promoters are not able

to sell the open parking area as it is a part of the 'common area' of the real

estate project as defined in the Act,2016 andthe Respondents are permitted to

allot only a covered parking area to the Complainants. In this case, the

Complainants were entitled to get the covered parking space in the Project land

itself along with his apartment and all the amenities and facilities offered by

the Respondent as per the terms of the Exbt. A1 agreement for sale, within the

period specified therein or at least on the date of taking possession of the

,13

apafiment, But the Respondents have failed patheticallv irt alloltirr!r 1 .,'rr rr'.'l

aovered parking area to the Complainants even atter ii lotig p,:tir,'i , I ii' , ,

Hence it is found that the Respondents have violated tl'rc tt'rtt't: ll lirL'

agreement for sale entered into between them and the Cornplainatttsi atlii lltr'

Point No. 2 is answered in favour of the Complainants.

12, In view of the above facts and circumstances arid the whole

factual matrix, we hereby direct the Respondents No. 1& 2 to proviCe :t

separate covered and marked car parking space to the ('ornplairtants, uitrhirr

One tnonth from the date o1'receipt of this order

No order as to costs13.

This order is issued without prejudice to the right.ri tiic

Complainants to approach the Authority with claims for oompensation in

accordance with.the provisions of the Act and Rules, for any loss or damage

sustained to them due to the default from the part of the Respondents

sd/-

Smt. Preetha P MenonMember

\tl

!ii l'ilIr. ]

(lhlLu'nt;u i

Secretary (legal)il

True Copy/Forwarded Byi()rdc' ri

1,4

Exhibit A I

Exhibit A.2

Exhibit 43Exhibit ,A.4

Exhibit A5

Exhibit A6 series :

Exhibit A7

Exhibit B 1

Exhibit 82Exhibit 83

APPENDD(

Exhibits on the side of the Complainants

True Copy of agreement for Sale made betweenUltima Builder and Developers Pvt Ltd.Attested copy of Sale deed No: 1 597lll20lldated 10-06-2011 Of S.R.O Thrikkakara.Copy of draft sale deed handed over to the ComplainantsE-mail dated 07-ll-2018 sent by Respondent'sto the ComplainantE-mail dated 20-04-2021 sent by Respondents

to the Complainants.E-mail sent by the Respondents during theperiod 03-01 -2011to 20-04-2021(21 No's.)E-mail regarding price split sent byRespondents on 03-0 1 -201 1

Exhibits on the side of the Respondents

Copy of the Receipt dated 17-05-2011Copy of email dated 14-04-2020Copy of email dated 16-05-2011